Topic 7 Case Reasoning Flashcards
(25 cards)
Butler v Fairclough
Fraud for the purposes of the fraud exception is ‘personal dishonesty or moral turpitude.’
Assests
Lord Lindley ;
‘constructive notice does not bring fraud home, however, wilful blindness may constitute dishonest and fraudulent conduct.’
‘if RP suspicions were raised but they abstained from making inquiries for fear of learning the truth, fraud may be ascribed.’
Young v Hoger
Negligence does not automatically activate the fraud exception.
Young v Hoger Facts
Children forged parent’s signature signing their mortgage as a security for a $400,000+ loan.
Loke Yew; Bahr v Nicolay No2
Where a verbal undertaking induces the execution of the transfer that was subsequently repudiated can amount to fraud.
*even if representation was made with the intention of keeping (post-registration fraud).
Loke Yew Facts
Loke Yew had agreement with prior RP to hold unregistered interest of 58 actres; agent of Port company negotiated get fee simple transferred for total acres - stating they would honour the unregistered interest; Port once RP tried to oust Loke Yew.
Held: post-registration fraud via agent commited.
Bendigo Bank Facts
Son forged Russo signature for mothers mortgage to her land as a security for a loan; law clerk signed saying she witnessed Russo sign.
Held: fraud exception did not apply; while negligent, law clerk honestly believed Russo signed mortgage.
(Would be assessed under s185(1A))
Bahr v Nicolay No2
‘A purchaser who is aware of a prior unregistered interest and agrees to be bound by it when buying the property will be subject to that unregistered interest. Equity will require the purchaser to honour that obligation’
Bahr v Nicolay No2 Facts
Appellant agreed to sell land to A with an option to buy back later; A sold to B; clause in original contract required B to be aware and bound by buy-back option.
Held: Mason, Dawson J - fraud exception applies (post-registration)
majority - in personam
Powerprop
Binds RP to their affirmative undertaking.
Powerprop Facts
P lessee in a building, new RP obtained interest with contract of sale stating it is subject to existing tenancies (mentioning the renew option).
Held - in personam applied (equity enforces RP to honour unregistered interests).
Bourseguin
Silence does not amount to an affirmative undertaking.
Bourseguin facts
Lessee had unregistered lease of 5 years with 5 year option to renew; exercised option to renew; premise sold to buyer with vacant possession except lessees in appendix;
Held: buyer had no affirmative undertaking to be bound by unregistered interests.
Whittlesea City Council
activities on the land more than causal acts of trespass, that have an ongoing use of the land have possession.
Adverse Possessor Elements
- has limitation period expired
- where there acts of possession
- was there an intention to possess
South East Drainage Board
Latham CJ ‘charges imposed by the later act take priority over mortgages registered under the Torrens legislation.’
Butler v Fairclough (Priority Dispute: Unreg. v Unreg.) Facts
B delayed lodging caveat, resulted in F not being able to see his unregistered interest in the land.
Held: B did not take adequate care to protect his interests.
J&H Just Holding Facts
Held; bank had priority even though they did not lodge a caveat. They had duplicate certificate of title in their posession (required for registration).
Breksvar v Wall
Barwick CJ: ‘priority can be postponed for first in time if the party contributes to the assumption that caused the subsequent equitable interest.’
Bunny Industrie Facts
Held: contract capable of specific performance
Cauchi Facts
Contract had express time of the essence clause; purchaser failed to pay instalments in time.
Held: Not capable of specific performance; purchaser not ready, willing and able to perform contract.
Regent v Millet Facts
A took over parents mortgage on the basis title would be transferred to them; moved into house, made improvements; Parents subsequently refused to transfer title.
Held: satisfies part performance; entering into possession strong indicator of part performance.
Ogilvie v Ryan Facts
D formed relationship with P; representation if D cared for him house would be hers after his death.
Held: no part performance; unequivocally referable requirement (could have cared for him out of love and affection).
Corin Facts
P wanted to gift her interest in land; signed document but died before authorising transaction with bank.
Held: P had not done all that was required to assign interest.
